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special to the national law journal Vivian Berger is professor emerita at Columbia University Law School. Should gun makers be their distributors’ and dealers’ keepers? The question of whether these manufacturers should bear any legal responsibility for harm caused by gun users is being addressed judicially and legislatively. The largely negative response thus far disserves the interests of the public. Every year, thousands of people are murdered or seriously wounded by handguns. In the 1980s, injured people and their survivors began to sue gun manufacturers. The early complaints-almost always unsuccessful-were based on negligence or strict liability and focused on the design or manufacturing process. More recent suits premised on negligent marketing or public nuisance-targeting gun distribution-may hold greater promise. None has yet succeeded on appeal; yet heavily funded pro-gun interests are working hard to eliminate the possibility of such an outcome. The National Rifle Association and similar groups have made nearly $17 million in political donations since 1990, 85% to Republicans. Gun control organizations, by contrast, have given less than a tenth of that sum, virtually all to Democrats. With Republican control of Congress and the presidency, the pro-gun lobby is poised to achieve its top legislative priority: enactment of the Protection of Lawful Commerce in Arms Act (known as the Firearm Manufacturers Protection bill). The bill would broadly immunize firearm makers and sellers against liability in civil actions resulting from criminal misuse of their products. It sailed through the House in less than six weeks. The bill applies to damages and injunctive relief in future and pending lawsuits, including more than 30 suits by municipalities. (Gun manufacturers already enjoy equivalent protection under the laws of 30 states.) The nearly identical Senate bill has received 59 pledges of support. President Bush has promised to sign it. There is a significant variation between the House and Senate versions. The latter would not protect defendants against injunctions. This distinction may make a difference. In August 2001, in Hamilton v. Beretta U.S.A. Corp., the 2d U.S. Circuit Court of Appeals upset awards of monetary relief against three major handgun makers. The district court had allowed the action to proceed, reasoning that the manufacturers owed the victims “a duty to exercise reasonable care in marketing and distributing their handguns.” New York’s highest court (to whom the question had been certified), unanimously disagreed, basing its conclusion on the large pool of potential plaintiffs and defendants, the remoteness of the link between the gun makers and the crimes, and the lack of any proof that a change in marketing techniques would have prevented the plaintiffs’ injuries. A second lawsuit mounted against the gun industry, National Association for the Advancement of Colored People v. Acusport, has just been decided by the same court that heard Hamilton. Although thrown out on technical grounds (the plaintiff could not demonstrate “special injury,” as required by New York’s public nuisance law), it largely avoided the problems that scuttled the earlier case. Because the plaintiff sought an injunction rather than damages, the action did not pose the specter of financial ruin of the defendants. The difficulties of proving causation were also averted: The plaintiff did not need to show that particular firearms would have stayed out of criminal hands, had the manufacturers acted differently. Most importantly, with court-ordered access to data on tracing of illegal weapons-previously withheld by the Bureau of Alcohol, Tobacco and Firearms-the plaintiff was able to demonstrate that a fairly small group of manufacturers, distributors and dealers accounted for a disproportionate number of guns used in crimes, weakening both the remoteness and evidentiary objections. The district court judge excoriated that segment of the gun industry whose negligence fostered the illegal market. The many plaintiffs around the country who can, or do not need to, surmount the special-injury stumbling block may now stand on firmer ground as they ask courts to order manufacturers to take preventive measures such as using only distributors that sell through “accredited” retail dealers-who, among other things, limit sales to one gun a month to a customer and do not make sales at gun shows. Congress, of course, can still pull the ground out from under these plaintiffs by endorsing the House’s immunity bill. What it should do instead is spike the NRA’s guns by passing a Citizens Protection Act, requiring that firearms manufacturers institute the sensible procedures now sought to be imposed through litigation.

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